James v. Bledsoe, No. COA11–944.

Docket NºNo. COA11–944.
Citation40 Media L. Rep. 2341, 727 S.E.2d 25
Case DateJune 19, 2012
CourtCourt of Appeal of North Carolina (US)

727 S.E.2d 25
40 Media L. Rep. 2341

Brian JAMES and Julius A. Fulmore, Plaintiffs
Jerry BLEDSOE; William Edward Davis Hammer, Individually and as President of Hammer Publications, Inc., John Hammer, Individually, as Secretary of Hammer Publications, Inc. and Editor–in–Chief of The Rhinoceros Times; and Hammer Publications Inc. d/b/a The Rhinoceros Times, Defendants.

No. COA11–944.

Court of Appeals of North Carolina.

June 19, 2012.

Appeal by plaintiffs from orders entered 1 August 2008 by Judge Vance Bradford Long and 5 April 2011 by Judge Edgar B. Gregory in Guilford County Superior Court. Heard in the Court of Appeals 22 February 2012.

Rossabi Black Slaughter, P. A., by Amiel J. Rossabi and Gavin J. Reardon, for plaintiff-appellants.

Smith, James, Rowlett & Cohen, LLP, by Seth R. Cohen, for defendant-appellees.


Brian James (“James”) and Julius A. Fulmore (“Fulmore”) (collectively “plaintiffs”) appeal from an order denying their motion to compel discovery and an order granting summary judgment in favor of Jerry Bledsoe (“Bledsoe”); William Edward Davis Hammer, individually and as President of Hammer Publications, Inc.; John Hammer (“Hammer”), individually, as Secretary of Hammer Publications, Inc., and Editor–in–Chief of The Rhinoceros Times; and Hammer Publications Inc. d/b/a The Rhinoceros Times (“ The Rhino Times ”) (collectively “defendants”). We affirm.

I. Background

Plaintiffs are African–American law enforcement officers employed by the Greensboro Police Department (“GPD”). At some point during the period from 2003–2005, plaintiffs were investigated by GPD. In the summer of 2005, allegations surfaced that some African–American officers at GPD were being targeted on the basis of race. As a result of these allegations, an investigation was initiated and Chief of Police David Wray (“Wray”) was forced to resign.

After researching the issue, Bledsoe contacted Hammer, the Editor–in–Chief of The Rhino Times, about writing a series in the newspaper entitled “Cops in Black and White.” The focus of the series was to show the reason for the investigations and whether race or legitimate concerns led to the initiation of the investigations. The series consisted of ninety-two parts in which Bledsoe made statements concerning plaintiffs.

Based on Bledsoe's statements, plaintiffs filed a complaint on 19 November 2007 against defendants alleging defamation per se and civil conspiracy to commit defamation. Defendants timely answered the complaint, claiming, inter alia, that plaintiffs' claims were barred by the doctrine of qualified or conditional privilege. After some limited discovery, plaintiffs filed a motion to compel discovery, seeking all documentation Bledsoe used in his research. After hearings on 19 May 2008 and 11 June 2008, the trial court denied plaintiffs' motion to compel discovery. Plaintiffs appealed to this Court, but the appeal was dismissed as interlocutory. On 21 September 2010, defendants moved for summary judgment. This motion was granted by the trial court on 5 April 2011. Plaintiffs appeal.

II. Summary Judgment

Plaintiffs claim the trial court erred by granting summary judgment because they forecast competent evidence of each element of the defamation per se claims and because defendants have the burden of showing the absence of actual malice. We disagree.

Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” N.C. Gen.Stat. § 1A1, Rule 56(c) (2011). “For a defending party to prevail on a motion for summary judgment, the party must demonstrate that (1) an essential element of [the claimant's] claim is nonexistent ... [and 2] [the claimant] cannot produce evidence to support an essential element of [her] claim....” Mkt. Am., Inc. v. Christman–Orth, 135 N.C.App. 143, 149, 520 S.E.2d 570, 575 (1999)(internal quotations and citation omitted). The evidence must be viewed in the light most favorable to the nonmoving party who also “must be given the benefit of all favorable inferences regarding the evidence.” Id. at 149, 520 S.E.2d at 575–76.

To prove defamation, the plaintiff must allege that the defendant made (1) false, (2) defamatory statements (3) concerning plaintiff that (4) were published to a third person and that (5) injured the plaintiff's reputation. Boyce & Isley, PLLC v. Cooper, 153 N.C.App. 25, 29, 568 S.E.2d 893, 897 (2002).

North Carolina has long recognized the harm that can result from false statements that impeach a person in that person's trade or profession—such statements are deemed defamation per se. The mere saying or writing of the words is presumed to cause injury to the subject; there is no need to prove any actual injury.

Cohen v. McLawhorn, 208 N.C.App. 492, ––––, 704 S.E.2d 519, 527 (2010) (internal quotations and citations omitted). Publications or statements are defamatory per se if they “are susceptible of but one meaning, when considered alone without innuendo, colloquium, or explanatory circumstances, and [they] tend to disgrace and degrade the party or hold him up to public hatred, contempt, or ridicule, or cause him to be shunned and avoided.” Andrews v. Elliot, 109 N.C.App. 271, 274, 426 S.E.2d 430, 432 (1993) (internal quotations and citation omitted).

When the alleged defamatory statements are published regarding a public officer's official conduct, the plaintiff must prove “that the defamatory statements were made with actual malice.” Boyce, 153 N.C.App. at 34, 568 S.E.2d at 900. Actual malice is present when a statement is made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 34, 568 S.E.2d at 900 (citation omitted). “[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 20 L.Ed.2d 262, 267 (1968). “When a defamation action brought by a ‘public official’ is at the summary judgment stage, the appropriate question for the trial judge is whether the evidence presented is sufficient to allow a jury to find that actual malice had been shown with convincing clarity.” Varner v. Bryan, 113 N.C.App. 697, 704, 440 S.E.2d 295, 299 (1994); see also Lewis v. Rapp, ––– N.C.App. ––––, ––––, –––S.E.2d ––––, –––– (2012) (recognizing that plaintiff must “forecast any evidence that defendant acted with actual malice, an essential element of [the] claim” to overcome defendant's motion for summary judgment). In the instant case, the parties do not dispute that plaintiffs are public officials. See Schlossberg v. Goins, 141 N.C.App. 436, 445, 540 S.E.2d 49, 56 (2000) (a governmental immunity case stating that “[o]ur courts recognize police officers as public officials.”).

Plaintiffs contend that defendants had the burden of showing the absence of actual malice at summary judgment, with that burden only shifting to plaintiffs at trial. Hall v. Piedmont Publ'g Co., 46 N.C.App. 760, 765, 266 S.E.2d 397, 401 (1980) (“ Hall II ”). In the first Hall case, the Court reversed the trial court's entry of summary judgment for defendants. Hall v. Piedmont, 33 N .C.App. 637, 235 S.E.2d 800 (1977) (unpublished) (“ Hall I ”). However, Hall I was unpublished and the Court in Hall II reviewed a directed verdict, not a summary judgment. Therefore, the Court's discussion in Hall II about the appropriate burden of proof at the summary judgment stage was dicta. We will evaluate the instant case according to the standard described in Varner.

As previously noted, plaintiffs concede that they are public officials. Therefore, they were required to produce sufficient evidence “to allow a jury to find that actual malice had been shown with convincing clarity.” Varner, 113 N.C.App. at 704, 440 S.E .2d at 299.

As an initial matter, we note that plaintiffs alleged in their complaint that The Rhino Times published twenty-four defamatory statements, but only addressed seventeen of these statements in their brief. Consequently, plaintiffs' claims based upon the remaining seven statements are deemed abandoned.

A. Statements about James

James was investigated by GPD because of his interactions with a woman named Nicole Pettiford (“Pettiford”). A federal task force was set up to investigate a drug and money laundering scheme. In connection with that investigation, a source was arrested. Prior to his arrest, the source paid for and received sensitive law enforcement information pertaining to the case. The source offered to help officers discover where Pettiford obtained information.

On or about 14 October 2004, the source made recorded calls to Pettiford who corroborated his statements that she had previously helped and would do so again. Earlier, Pettiford had sold information to the source for $5,000. When the source sought additional information, Pettiford informed him that James provided the information in their last encounter. Pettiford stated that she could get sensitive information from law enforcement officers again and proved this by making three-way calls to police officers. One of these calls was made to James and was recorded. In the conversation, Pettiford indicated that she needed James to do something for her.

During the time the source sought information from Pettiford, she was under surveillance. On 21 October 2004, while Pettiford was being followed, she drove to a parking lot at a Sam's Club store (“Sam's”), parked beside James's car and entered his city vehicle. The two of them remained in the parking lot for approximately ten minutes. As a result of these events, Scott Sanders (“Sanders”), a detective with the Special Intelligence...

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